STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DUARDO B SMITH, Employe

NEW GRANCARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001422MD

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 45 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $5,014.00 to the Unemployment Reserve Fund.

Dated and mailed July 13, 2000
smithdu.usd : 135 : 1   MC 605.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer's progressive disciplinary procedure provides that two no-call/no-shows justify immediate termination. The employe admitted that he was a no-call/no-show on August 19, 2000 because he was not in town. The employe, however disputes his absence on November 4, 2000 as a no-call/no-show.

On November 4, the employe was scheduled to work from noon to 8:00 p.m. He called the employer at 10:30 a.m. and reported he was not feeling well. The employe told his supervisor he would arrive at work by 3:00 p.m. but did not report to work or call back to say that he would not be in for the remainder of the shift. The employer's rule requires notice of an absence at least two hours before the scheduled starting time. Because the employe's initial notice was late by one half-hour and because he did not call again later in the day, the employer treated the employe's absence on November 4 as a no-call/no-show and discharged the employe under its policy.

While the employe argues that the characterization of his absence on November 4 as a no-call/no-show is incorrect as well as harsh, the ALJ found that the employe's testimony about the details of his November 4 absence rather vague and unconvincing. The employe did not obtain medical treatment and disputed that he had committed when he called at 10:30 a.m. to report later that day. The employe also offered no explanation for failing to provide his initial notice on time which would have been 10:00 a.m.

Under the circumstances, the commission is satisfied that the employe was a no-call/no-show on August 19, as well as November 4. It was the employer's prerogative to discharge the employe for two no-call/no-shows pursuant to its progressive disciplinary policy. The commission also notes that the employe was advised in August after his August no-call/no-show that any additional infraction involving a no-call/no-show would result in termination. The employe's vague explanation fails to overcome the employer's evidence. The commission also notes that the employe was the only cook on duty during the shift. By failing to report to work as the only cook for the nursing facility, the employe placed the employer in an extremely difficult position since the employer's daily duty was to provide food to its residents.

The employe raises several issues in his petition for commission review regarding the ALJ's decision. The employe believes that the ALJ made his decision before looking over any information that was submitted to him or without listening to any of the recorded tapes. This is an inaccurate characterization. The ALJ based his decision on the evidence he adduced at the hearing. The employe inquires why the employer filled out a "Failure to Report to Work" slip when his shift did not start until noon. The paperwork the employer prepared does not discount the fact that the employe ultimately did not report to work on November 4, even though he indicated he would later on during his shift. The employe also failed to establish any convincing evidence to support his allegation of ulterior motives by his supervisor regarding his discharge.

And finally, the employe notes that the employer-appellant was late for its hearing. The time to raise this objection, however, was at the beginning of the hearing, not after the employe received an adverse decision. In any event, the ALJ correctly attempted to gather all of the relevant witnesses so the hearing could proceed. The commission will not fault the ALJ for fulfilling his responsibility by conducting a hearing so that both parties could present evidence regarding the merits of the employe's eligibility.

cc: SUNNY HILL HEALTHCARE CENTER

WRAY VASSAR
CONTINENTAL INVESTIGATIONS

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